DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
TROY W. KLEIN,
Appellant,
v.
ALAN D. ROMAN and DEBORAH W. ROMAN,
Appellees.
Nos. 4D15-4783 and 16-1880
[September 6, 2017]
Consolidated appeals from the Circuit Court for the Fifteenth Judicial
Circuit, Palm Beach County; Scott Suskauer, Judge; L.T. Case No.
2008DR001975XXXXMB.
Troy W. Klein of Law Office of Troy W. Klein, P.A., West Palm Beach,
pro se.
Jeffrey S. D'Amore and Rosemarie W. Guerini of D'Amore Law Firm,
P.A., Palm Beach Gardens, for appellee Alan D. Roman.
Jill G. Weiss of Jill G. Weiss, P.A., Palm Beach Gardens, for appellee
Deborah W. Roman.
FORST, J.
Appellant Troy Klein makes several arguments on appeal related to the
trial court’s order granting Appellee Alan Roman’s motion to release
Appellant’s charging lien and award sanctions. We write only to address
two of Appellant’s arguments on appeal: (1) whether the trial court erred
by awarding attorney’s fees to Appellee without eliciting the testimony of
an independent expert, and (2) whether the court erred by failing to
expressly apply the “lodestar” method to calculate those fees. We find the
first argument meritless, but reverse the second. We affirm all other issues
on appeal without discussion.
Background
Appellant was the attorney for Appellee’s former wife in a dissolution of
marriage proceeding. Because of unpaid attorney’s fees owed under a
contract with Appellee’s former wife, Appellant filed a notice of charging
lien asserting an interest in the former wife’s two homes. However, as part
of the marital settlement agreement, Appellee received one of the
properties.
When Appellee sought to sell that property, he learned of the lien and
sent a letter to Appellant demanding a release, to no avail. Appellee
subsequently filed a motion to release the lien and award sanctions. The
trial court held a hearing at which Appellee’s counsel testified regarding
the amount of attorney’s fees he incurred in the effort to have the lien
removed. Counsel submitted an affidavit detailing his hourly rate, the
number of hours worked, and the type of work he had done.
The trial court granted Appellee’s motion, and ordered Appellant to
release the charging lien and to pay Appellee $5,146.50 in attorney’s fees.
Afterwards, Appellant submitted a motion for rehearing, making almost all
the same arguments he now makes on appeal. The trial court denied the
motion.
Analysis
“The standard of review of an award of attorneys’ fees is abuse of
discretion.” Diwakar v. Montecito Palm Beach Condo. Ass’n., 143 So. 3d
958, 960 (Fla. 4th DCA 2014). The award must be supported by
competent, substantial evidence. Id.
Appellant first argues that the trial court’s award of attorney’s fees was
erroneous given that Appellee “failed to present any independent expert
testimony regarding the reasonableness of the attorney’s fees being sought
despite the well-established legal requirement to do so.” We need not
consider the merits of Appellant’s argument, as it was unpreserved.
Appellant failed to make a timely, contemporaneous objection at the fee
hearing regarding Appellee’s failure to provide independent expert
testimony. See San Pedro v. Law Office of Paul Burkhart, 168 So. 3d 299,
300 (Fla. 4th DCA 2015) (“To the extent that Appellants now contest the
admission of the exhibits and the lack of testimony, those arguments were
waived when Appellants failed to object at the hearing.”); Diwakar, 143 So.
3d at 960 (“To the extent Diwakar argues on appeal that the attorneys’ fee
award was erroneous in the absence of testimony from a fees expert plus
the attorney who performed the work, the argument was waived when
Diwakar failed to object at trial.”); DM Records, Inc. v. Turnpike Commercial
Plaza, Phase II, Condo. Ass’n, 894 So. 2d 1030, 1031 (Fla. 4th DCA 2005)
(“If we were to allow these issues to be raised for the first time on appeal,
2
where there was no objection in trial court, it would be unfair to the party
seeking fees and the trial judge and result in unnecessary appeals.”).
Even if the issue had been preserved, Section 61.16(1), Florida Statutes
(2016), appears to control, given the nature of the underlying case from
which this award of attorney’s fees stems. 1 Under that statute, “[a]n
application for attorney’s fees, suit money, or costs, whether temporary or
otherwise, shall not require corroborating expert testimony in order to
support an award under this chapter.” § 61.16(1), Fla. Stat. (2015)
(emphasis added).
Although we affirm the first issue, we reverse the second. As both
parties correctly recognize, the trial court erred by failing to expressly
apply the lodestar method when calculating the amount of attorney’s fees
in its order. “It is well-settled that an award of attorney’s fees must . . .
contain express findings regarding the number of hours reasonably
expended and a reasonable hourly rate for the type of litigation involved.”
Simhoni v. Chambliss, 843 So. 2d 1036, 1037 (Fla. 4th DCA 2003). There,
because the trial court failed to include an express lodestar calculation,
we reversed and remanded for the trial court to enter a new written order
containing the necessary calculation. Id. We do the same here. We also
note, as we did in Simhoni, that “[t]he court need not hold a new evidentiary
hearing if it is able to enter a written order from its notes or a transcript
of the original fees hearing.” Id. Appellee’s counsel’s affidavit detailing
why he charged $5,146.50 in fees should enable the court to enter a new
written order without holding a new hearing.
Conclusion
Because the trial court failed to expressly calculate its attorney’s fees
award by way of the lodestar method, we reverse and remand for the trial
court to enter a new written order. The trial court’s order is otherwise
affirmed.
Affirmed in Part, Reversed and Remanded in Part.
GERBER, C.J., and WARNER, J., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
1 Chapter 61 governs the award of attorney’s fees in dissolution of marriage,
support, and time-sharing cases.
3